The Corporation as a Person Follow-Up

Recent background

The laws of the United States hold that a legal entity (like a corporation or non-profit organization) shall be treated under the law as a person except when otherwise noted. This rule of construction is specified in 1 U.S.C. §1, which states:

In determining the meaning of any Act of Congress, unless the context indicates otherwise-- the words "person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;

This federal statute has many consequences. For example, a corporation is allowed to own property and enter contracts. It can also be sued and held liable under both civil and criminal law. Among the most frequently discussed and controversial consequences of corporate personhood in the United States is the extension of a limited subset of the same constitutional rights.

Corporations as legal entities have always been able to perform commercial activities, similar to a person acting as a sole proprietor, such as entering into a contract or owning property. Therefore corporations have always had a 'legal personality' for the purposes of conducting business while shielding individual stockholders from personal liability (i.e., protecting personal assets which were not invested in the corporation).

The stronger concept of corporate personhood, in which (for example) First, Fifth, and Fourteenth Amendment rights have been asserted by corporations, is often traced to the 1886 U.S. Supreme Court case Santa Clara County v. Southern Pacific Railroad Company (118 U.S. 394). In that case, before oral argument took place, Chief Justice Morrison R. Waite announced:

"The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."^[9]

This quotation was printed by the court reporter in the syllabus and case history above the opinion. As a result, the Court decision did not address the matter of whether corporations were 'persons' with respect to the Fourteenth Amendment. Author and radio/TV talk show host Thom Hartmann has argued that in fact, Chief Justice Waite wrote in private correspondence that, "we avoided meeting the [Constitutional] question," and found - and published in his book "Unequal Protection," the actual correspondence between Waite and Davis in the Library of Congress which demonstrates that Waite did not intend to create a legal precedent. The question of whether corporations were persons within the meaning of the Fourteenth Amendment had been argued in the lower courts and briefed for the Supreme Court, but the Court did not base its decision on this issue.

Ralph Nader and others have pointed out that a strict originalist philosophy, such as that of Justice Antonin Scalia, should logically reject that a doctrine of corporate personhood could derive from the 14th Amendment.^[10] Indeed, Chief Justice William Rehnquist repeatedly criticized the Court's invention of corporate constitutional "rights," most famously in his dissenting opinion in the 1978 case, First National Bank of Boston v Bellotti.

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